The right to privacy and the aadhar verdict : balancing individual rights and state surveillance

ABSTRACT

This Article critically examines the significant issue surrounding the Aadhaar verdict in relation to the right to privacy enshrined in constitution. Aadhaar card which provides unique identification number to citizen for social welfare through biometric and metadata, is controversial due to concerns about safeguarding citizens privacy. While the system have helped streamline welfare delivery, concerns have been raised regarding the potential data misuse, data security and privacy invasion. Further questioning the constitutional validity of Aadhaar and the debate of whether Right to Privacy is a fundamental right or not arises. It is essential to foster a legal and ethical framework that protects personal privacy while allowing the state to function effectively.

Key Word: Aadhaar, Unique Identification Number, Surveillance, Right to Privacy and Constitution

INTRODUCTION

The Right to Privacy has evolved from time to time through different judgements concerning constitution. Though the right to privacy was never explicitly mentioned as a fundamental right, it was always included under the right to personal liberty. After the 2017 Supreme Court landmark judgement in the Justice Puttaswamy case, the debate surrounding Right to Privacy being fundamental right ended. The court declared Right to Privacy a fundamental right. With the advancing technology concern regarding the protection of personal data have arised and Aadhaar is the center of this discussion. In 2012 the government made it compulsory to collect biometric data of all individuals under Aadhaar scheme, which helps state to surveil the act of every person. Therefore Justice Puttaswamy approached the Supreme Court regarding this issue, which further compelled the honorable court to put a full stop on the question of whether Right to Privacy is a fundamental right or not.1In 2017 the court held that the Aadhhar scheme is valid but there should be measures taken by the government to protect the privacy of Namrata Kandankovi, Adhaar and the Right to Privacy, Ipleaders, June 8, 2019 individual and declared Right to Privacy a fundamental right. The right to privacy is not an absolute right but it can only be restricted on the basis of the due procedure established by law.

AADHAAR SCHEME

Aadhaar is a 12 digit unique identity number issued to all Indian resident on the basis of their biometric and demographic data. This data includes fingerprints, photographs and iris scan. Unique Identification Authority of India (UIDAI), is a statutory authority establishes by government of India in January 2009 in order to collect data. Aadhaar is a worlds largest biometric ID system, 90% Indian above 18 years have enrolled themselves as a member of Aadhaar.4\In 2012 the government made Aadhaar card mandatory for every citizens and planed to linked biometric ID of individuals to take benefit of government scheme.5 Which resulted into a biggest controversy. The Aadhaar scheme was firstly launched fot the purpose of three social problem i.e., a) reduce mass poverty, b)ensure national security given the apprehensive relations with neighbors and c) regulate terrorism finance. The main focus of Aadhaar scheme was social welfare by linking. Aadhaar is made mandatory in present time to avail certain government schemes, subsidies and policies.

EVOLUTION OF RIGHT TO PRIVACY

The concept of right to privacy have been evolved over the period of time through various judicial interpretations. Right to Privacy have always been taken as something granted, despite not being specifically enumerated in constitution. In the case of M.P Sharma v Satish Chandra (1954), the matter of right to privacy was initially raised. This case involved search and seizure of the documents here the court declared that the right to privacy is not a fundamental right. Later in the case of Kharak Singh v State of Uttar Pradesh (1962), right to privacy again came in light as the plaintiff an alleged dacoit was subject to surveillance and periodic house visit. Again in this case Supreme Court declared that right to privacy is not a fundamental right but still is a essential ingredient of personal liberty. Over the year, the judiciary began to recognize privacy as a facet of personal liberty. In Govind v. State of Madhya Pradesh (1975), the Supreme Court acknowledged that privacy is implied in the constitution, but it was not deemed an absolute right. This judgement was passed by a smaller three-judge bench.11 But the recent development in the Aadhaar raised the issue of Right to Privacy and state surveillance. In 2017 the Supreme Court put end to this saga in the judgement of K.S. Puttaswamy v. Union of India, which we will discuss in the next segment of this article.

THE AADHAAR VERDICT

Justice K.S. Puttaswamy filled a writ petition in the Supreme Court against the Aadhaar scheme, where Aadhaar card and biometry data was made mandatory to avail social welfare and government schemes. Puttaswamy filled writ petition stating that the Aadhaar scheme is a violating right to equality and privacy. A five- judge bench headed by chief justice made nine judge constitutional bench to rule that whether right to privacy is constitutionally protected fundamental right. The Supreme Court, in its final judgement upheld the constitutional validity of Aadhaar and delivered that Right to Privacy is fundamental right under Article 21 of the constitution. The court ruled that while the Aadhaar program serves a legitimate purpose, it must not infringe on individual rights. The court emphasized that any state intervention must be reasonable, justifiable, and proportionate. Some of the sections of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 were struck down, Sections 33(2), 47 & 57 of the act which dealt with National Security Exception and Private entities & company seeking Aadhaar details of employees. Three-Part Test for Privacy Invasions was established for any government action seeking to breach fundamental rights of privacy: legality (a law exists); necessity (a legitimate state need); and proportionality (the least restrictive means to achieving the objective).

This judgment established critical parameters for the use of biometric data, asserting that the collection and processing of such information must adhere to the principles of necessity and proportionality. It mandated strict regulations to prevent misuse, reinforcing the notion that individual rights must be protected even in the face of state interests. Justice D.Y. Chandrachud showed his dissent towards Adhaar Act throughout the rulling, he opposed the Aadhar Act being passed as money bill in Lok Sabha and said that if Aadhar is seeded with every other database there will be infringement of right to privacy. 

The Puttaswamy judgment is increasingly relevant in the digital age, where rapid technological advancements pose significant privacy challenges through digital platforms, social media, and data analytics. It advocates for a balance between embracing these technologies and ensuring robust privacy protections for individuals. Ongoing dialogue and adaptive legislation are essential to address current and future privacy concerns, as the commodification of data can lead to exploitation. Protecting privacy is crucial not only for individual dignity but also for maintaining a healthy democracy, fostering trust and encouraging civic engagement. Overall, the judgment emphasizes the need for vigilant protection of human rights amid technological progress.

THE BALANCE OF RIGHTS AND SURVEILLANCE

Balancing individual rights and state surveillance for national security is a complex issue that requires thoughtful consideration. Its essential to protect citizens’ privacy while enabling the state to fulfil its duty to maintain security and order18. In todays world data is power. Government argue that surveillance is crucial for national security, crime prevention, and efficient public service delivery. However unchecked surveillance can lead to privacy breaches, misuse of data, and a chilling effect on the freedom of expression and association. Hence, a balance must be struck between surveillance and the protection of individual privacy. In order to achieve balance between rights and surveillance, the following things should be done:

1) Legal Framework: Establish clear, transparent laws that defines the scope and limits of surveillance is carried out within legal boundaries and is subject to checks and balances.

2) Oversite Mechanisms: Implementing independent oversite bodies to monitor and review surveillance activities. 

3) Data Minimization: collect data which is necessary for specific purposes. Limiting data collection will reduce the risk misuse and enhances privacy protection.

4) Transparency and Accountability: Government should be transparent about their surveillance activities and should be held accountable for any breaches or misuse of data.

5) Technological Safeguards: Employ advanced encryption and data protection technologies to secure data against unauthorized access and breaches.

Striking the right balance between individual privacy and state surveillance is challenging but essential for a democratic society. Ensuring the existence od strong legal and technological safeguards can help achieve this balance while fostering trust between citizens and the state.

EXAMPLES OF HOW OTHER COUNTRIES APPROACHES THIS BALANCE

Different countries have taken different measures to ensure the balance between citizens privacy and surveillance. State surveillance is important to protect themselves from enemy but protecting privacy of individual is also crucial. Most countries opts to strong legal framework and implementation. Some of the examples are:

1) European Union: The European Union have adopted General Data Protection Regulation (GDPR), it sets strict guidelines on the data protection and privacy, even for state entities. It ensures transparency and accountability in the way personal data is handled. 

2) United States: In United States the USA PATRIOT ACT was introduces after the 9/11 attack. It increased the surveillance capabilities but subsequent reforms like USA FREEDOM ACT aimed to curb excessive surveillance and introduces oversight mechanism.

3) Germany: The Federal Constitutional court has been particularly protective of privacy rights, striking down several surveillance laws for being too invasive. Germany emphasized the need for proportionate measures and judicial oversight.

CONCLUSION

The Aadhaar verdict is a crucial step in affirming the Right to Privacy as a fundamental right in India, balancing the state's need for governance with individual rights. As we move into an era increasingly defined by data and surveillance, it is essential to foster a legal and ethical framework that protects personal privacy while allowing the state to function effectively. The challenge lies not only in implementing these principles but in ensuring that the citizen's voice is heard in shaping the future of data privacy and state surveillance.